Terry Goddard shows class on SB 1070 fight

Jun. 19, 2010 07:30 PM

From the political notebook:

• Attorney General Terry Goddard did the right thing by stepping aside and letting Gov. Jan Brewer take the lead on defending Arizona's new immigration law. To do so, he had to swallow a lot, given Brewer's petulant mishandling of the situation.

Early last week, Brewer sent Goddard a letter demanding that he butt out of the case, claiming that the new state law gave her control of the litigation, including the right to appoint counsel other than the attorney general, which she had done.

There's one rather huge and insurmountable problem with the governor's claim. The law giving her that authority doesn't go into effect until July 29. Right now, she has zero authority to make the legal decisions on behalf of the state or appoint outside legal counsel to represent the state.

And, of course, a telephone book of litigants is suing to prevent the new legislation from ever going into effect. By law, Goddard is the only one authorized to represent the state in trying to combat these requests to enjoin the law.

Goddard had actually made a constructive offer to work with the governor's outside counsel during this period. Rather than accept this bridge across the legal limbo, Brewer sent her demand letter asserting fictitious authority and threatening to sue to oust Goddard if he didn't get out of the case.

Goddard decided to step aside rather than engage in additional litigation, even though he clearly would have won any challenge to his right to represent the state until July 29. After that, the issue is ambiguous. Goddard asserts an inherent constitutional right for the attorney general to represent the state in litigation, but the state Constitution confers no such authority. Instead, it merely says that the duties of the attorney general shall be "as prescribed by law," in other words as provided by the Legislature.

During this dispute, Brewer's staff has also bad-mouthed the legal capabilities of Goddard's office. This was unfair and unwarranted. Goddard's Solicitor General's Office has generally done a good job during his tenure.

Although he could have won the legal challenge to his authority at least through July 29, Goddard did the state a service by stepping aside. The emotions over SB 1070 are so intense and raw, it is better that a champion rather than a critic of the legislation take the lead in defending the statute in court. There remains, however, a tricky legal question about how Brewer's outside counsel gets standing to represent the state prior to July 29.

Regardless, Goddard ultimately acted like a statesman in this dispute. Brewer acted like a petulant and disingenuous politician.

• E.J. Dionne once wrote a book titled "Why Americans Hate Politics." As it turned out, Dionne thought Americans hated politics because too few politicians agreed with Dionne.

I think it has more to do with the ways politicians behave, irrespective of whether you agree with them.

The catfight going on between J.D. Hayworth and John McCain over corrupt campaign donors is a good example.

Since the beginning of the campaign, McCain has been hammering Hayworth over his association with convicted lobbyist Jack Abramoff. Abramoff's chief clients were Indian tribes with gambling interests. Hayworth was a supporter of Indian gaming and so received support from Abramoff.

McCain's criticism was unfair. All Hayworth was found to have done wrong regarding Abramoff was not report in a timely fashion the use of some facilities he controlled for fundraising. Hayworth came to his support for Indian gaming independent of Abramoff.

Now, it turns out that some of the donors to McCain's presidential campaign have been convicted of conducting Ponzi schemes. Again, there is no evidence McCain knew about this or did anything wrong.

Rather than use this to demonstrate the hypocrisy and unfairness of McCain's charges regarding Abramoff, Hayworth has gone on the counterattack, contending that McCain should have known about the criminal activity and suggesting that the FBI should interview him.

In reality, politicians come in contact with, and are supported by, lots of people they hardly know. Unless there is some evidence of complicity, the wrongdoing of supporters can rarely be fairly ascribed to a politician.

In politics, however, the adage is that if you are on defense, you are losing. So, rather than rebut, candidates are told to counterattack.

In politics, turnaround is not only regarded as fair play but a strategic imperative.